Toxic tort cases can revolve around situations that lead to not just injuries to people, but also environmental contamination and property damage. Fortunately, civil law provides the chance for property owners to receive monetary restitution from those whose negligence is believed to have caused the environmental contamination and property damage. This restitution is for the purpose of returning the property owner to the same financial state he or she was in before the tort that caused the damage.
Federal law allows plaintiffs to make claims for restitution related to:
•The diminishment of the land’s value or “reasonable” restoration costs;
•Loss of land use; and
•Annoyance and discomfort.
Additionally, both the United States government and the plaintiff have the right to seek payment for current and future cleanup costs as a result of contamination to land due to hazardous substance release, not including petroleum. Many states may also have statutes allowing plaintiffs to seek similar damages; however, property owners may not obtain double recovery related to restoration and cleanup costs. Most statutes will put a cap on the recoverable amount to the lands actual fair market value.
Common law in most states provide for the recoverability of losing the use and enjoyment of a property owner’s land after an environmental tort occurs. Legal theories related to nuisance are the basis for this right of recovery and are considered separate from actual property damage.
One other cause of action in toxic tort property damage cases relates to a theory called stigma. Stigma damages revolve around the fact that some sort of toxic tort leads to a loss of reputation to a property that makes it much more difficult or even impossible to sell. Some plaintiffs attempt to recover stigma damages for properties that have not been actually damaged themselves, but are in close proximity to land that has been directly contaminated. These types of cases are much more challenging to succeed at than the other type of stigma cases. Courts tend to look much more favorably upon environmental contamination and property damage cases seeking stigma damages when actual physical harm has been done to the piece of land in question. Stigma damages could even be awarded when the damage to a property is temporary, but there is a long-term negative consequence in loss of reputation to that land.
In order to succeed at this type of claim for damages, a property owner must demonstrate that:
1.The tortfeasor (defendant) has caused physical damage of some kind to the plaintiff’s property;
2.Repairing that damage will not automatically restore the property’s value to its former amount; and
3.There is a continuing risk of some kind to the land in question.
Navigating an environmental contamination and property damage case can be challenging, but an experienced attorney used to practicing this type of law can certainly be critical for a case’s success. Such an attorney has the knowledge and experience often required to succeed at these types of property damage claims. No innocent property owner should have to pay the price for another person’s negligence, and civil laws exist to provide these property owners the rightful compensation to which they are entitled.
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[Source: Environmental Contamination pages from “Theories of Liability and Damages in Toxic Tort Cases” provided by The Dysart Law Firm, p.c.